Judgment A.B. Srivastava, J. 1. Thirty six accused-appellants have preferred this appeal against a judgment dated 3-10-1978 of conviction rendered by I Additional Sessions Judge, Ghazipur in Sessions Trial No. 102 of 1976. Five of the appellants, Shambhu Rai, Kamaksha Rai, Munni Lal, Chandradeo Rai, Udai Rai, have been convicted of the offences punishable under lections 147, 323, 325, 429, 436, 364 and 302, all read .with section 149 of the IPC. Rest of the appellants Basan Rai, Dina Rai, Tarkeshwar, son of Ram Raksha Rai, Shri Ral, Baliram Rai, Uma Rai, son of Chandrika, Sivil Rai, Raja Ram Rai, Tarkeshwar, son of Suraj Rai, Singhasan Rai, Janardan Rai, Uma Rai, son of Badan, Harihar Rai, son of Dubri Rai,, Rama Rai, Chandrahas Rai. Sita Rai, Gurudutt Rai, Lala Rai, Nand Kishone Rai, Harihar Rai, son of Lodi Rai, Sheo Muni Rai, Viodhyachal Rai, Raghunath Rai, Mukteshwar Upadhyaya, Uma Shanker alias Bombay Rai, Kashi Rai, Sudarsban Rai, Abhai Rai, Chhabi Nath Rai, Mahendra Rai and Ayodhya Rai have been convicted of the offences under sections 147, 323, 325, 429 and 436, all read with 149 IPC. All these appellants have been sentenced under sections 147/149 IPC to R.I. for two years under sections 323/149 IPC R.I. for one year 325/149 for 1½ years, 429/149 IPC 5 years, and 436/149 IPC to R.I. for 10 years. Those convicted under section 364/149 IPC have been further sentenced to R.I. for 10 years and under section 302/149 IPC to Imprisonment for life. All the sentences have been ordered to run concurrently. All the 36 appellants, the two deceased Radhey Shyam and Banarasi, the first informant, the victims and the eye witnesses are all residents of village Sherpur within jurisdiction Darshan Singh v. State of Punjab, 1988 CrLJ 909 of Police Station Bhanwar Koal, district Ghazipur. In the said village the abadi of Haxizans, to which community the deceased and the other victims belong is situated separate and a little away from the abadi of the upper caste people to which the accused persons belong. The Dera ana Khalihan of Ram Chandra Rai and Mangla Rai, the two other persons, who lost their life, shortly before Radhey Shyam and Banarasi were done to death, are situated at a distance of about three furlongs east of the Harijan' basti. 2. The Dera ana Khalihan of Ram Chandra Rai and Mangla Rai, the two other persons, who lost their life, shortly before Radhey Shyam and Banarasi were done to death, are situated at a distance of about three furlongs east of the Harijan' basti. 2. The prosecution story, as set out in the FIR lodged by the informant Muneshwar (PW 1) and the statements of the materia witnesses, in brief, is that deceased Radhey Shyam the son of informant was working as a ploughman of accused-appellant Shambhu Rai. Three days before the incident to which this case relates, there took place a dispute between deceased Radhey Shyam and Paras Rai the son of Shambhu Rai, about carrying the hay from the khalihan of Shambhu Rai. On refusal of Radhey Shyam to carry the hay, Paras Rai twisted his arm and also beat him. When Dulad, the married sister of Radhey Shyam tried to save his brother, Paras Rai beat her too lathe night of 26/27-4-1975, some unknown persons, it is alleged, murdered two bhumidhars named Ram Chandra Rai and Mangla Rai in their Khalihan on the outskirts of the village and also caused hurt to Jagdish Rai the brother of Paras Rai. The injured Jagdish Rai was taken by some persons to the Police Station. Some time after the said [incident, a little after day break on 27-4-1975 the accused appellants barring Mahendra Rai and Ayodhya Rai, named above, forming an unlawful assembly, came to the house of informant Muneshwar in the Harijan basti and in furtherance of their common object caught hold of deceased Radhey Shyam, son of Muneshwar, and Banarasi, son of Sheo Govind Harijan, and took them to the Khalihan of Ram Chandra Rai where he was lying dead, followed by the informant Muneshwar, Phulan (PW 2) Bulli (PW 3) Ram Ugrah (PW 20), Mohan, Sohan and Sheo Baran of the locality. Reaching near the Peepal tree, situated in the southern portion of the Khalihan the assailants started assaulting Radhey Shyam and Banarasi by lathis, ballam and gandasa. Despite the entreaties witn folded hands of the informant and others, they [paid no heed, and kept assaulting the two victims Radhey Shyam and Banarasi mostly by lathis, till they fell dead. Reaching near the Peepal tree, situated in the southern portion of the Khalihan the assailants started assaulting Radhey Shyam and Banarasi by lathis, ballam and gandasa. Despite the entreaties witn folded hands of the informant and others, they [paid no heed, and kept assaulting the two victims Radhey Shyam and Banarasi mostly by lathis, till they fell dead. After having accomplished their object of committing the two murders, the aforesaid 34 assailants along with a mob of about four to five hundred bhumidhars, led by village Pradhan appellant Mahendra Rai, and appellant Ayodhya Rai, started proceeding towards the Harijan basti raising slogans of victory and proclaiming their intention to burn the Harijan basti, Seeing this and apprehending danger to their life, the informant and others witnessing the incident of murder, ran for their lives and took shelter behind hedge of Behya shrubs at a short distance from the Harijan Basti, from where the 'Basti" was visible. The aforesaid mob of bhumidhars indiscriminately set fire to the houses of Harijans by sprinkling kerosene oil. The fire soon engulfed a sizeable part of the basti. The miscreants who had surrounded the locality from almost all the sides, started beating the females, children and other inmates trying to retrieve their belongings, and some of them also indulged in looting property. The burning spree was continued for quite some time and besides the houses, the moveables and grains, even the cattle and the crops in the Khalihans situated in the basti, were all burnt by the miscreants. While the basti was so burning informant Muneshwar rushed to the Police Station Bhanwar Koal to inform the police about this bizarre incident Reaching the police station, situated at a distance of five miles, he lodged oral first information report Exhibit Ka 1 at 8.45 P.M. as per endorsement therein (1.45 A.M. as per the corresponding General Diary entry). The FIR against the 36 named accused-appellants along with 400-500 unnamed persons was registered at the police station under sections 147, 148, 149, 302, 436, 395 and 429 of the IPC. 3. Prior to the lodging of FIR Exhibit Ka 1 by informant Muneshwar, another First Information Report Exhibit Kha 7, in writing, had been lodged at the Police Station Bhanwar Koal, district Ghazipur, by Jagdish Rai. 3. Prior to the lodging of FIR Exhibit Ka 1 by informant Muneshwar, another First Information Report Exhibit Kha 7, in writing, had been lodged at the Police Station Bhanwar Koal, district Ghazipur, by Jagdish Rai. who had been injured in the incident in which Mangla Rai and Ram Chandra Rai had lost their lives, naming deceased Ridhey Shyam, deceased Banarasi, Ganga and Sheo Nath, along with 5-6 other unknown persons The said FIR was registered under sections 147, 148, 149, 302, 307 IPC at 7 A.M. on 27-4-1975, showing the incident to be near about mid-night. The incident in this FIR was also alleged to be sequel to the dispute between Paras Nath Rai and deceased Radhey Shyam Harijan, regarding carrying hay during the course of which Paras Nath had also slapped Dulari, the sister of Radhey Shyam. 4. Since there was prevailing tension in Sherpur and other villages in the locality on account of certain earlier incidents of murder, and other offences involving members of different castes, P.A.C. had been posted in village Basania and the Sub Inspectors of Police Station, Bhanwar Koal, and officials of the crime section of the C.I.D used to frequently visit the said area for patrolling. In the night of 26/27-4-75 S.I. Ram Nagina Singh (PW 22) of Police Station Bhanwar Koal was on-night dirty at Masons Out Post, Inspector M.P. Singh of the Crime Branch C.I.D., Ghazipur was also present in the locality, having gone to check the P.A.C. camp. On receiving information about the incident having occurred in village Sherpur, and request to return to the Police Station, PW 22 Ram Nagina Singh before returning to the police station informed Inspector M.P. Singh, who along with other police officials and a posse of P.A.C. proceeded to village Sherpur. The FIR Exhibit Ka 1 of this incident was recorded at the police station in the presence of Ram Nagina Singh and he immediately started for the place of occurrence for investigation, where PW 24 Inspector' M.P. Singh and other officials had already arrived. Reaching village Sherpur at about 11 A.M. he joined Inspector M.P. Singh, Dina Nath Chaubey, S.O. Police Station Mohamdabad, and other police officials, in the task of extinguishing the fire in the Harijan basti and providing security. Seven of those injured in this incident of arson and assault were sent for medical examination the same day. Reaching village Sherpur at about 11 A.M. he joined Inspector M.P. Singh, Dina Nath Chaubey, S.O. Police Station Mohamdabad, and other police officials, in the task of extinguishing the fire in the Harijan basti and providing security. Seven of those injured in this incident of arson and assault were sent for medical examination the same day. At about 4.30 P.M. he readied the Khalihan of Ram Chandra Rai, where Radhey Shyam and Banarasi had been done to death. Appointing Panches he made an inquest first of the dead body of Banarasi and thereafter of Radhey Shyam, prepared inquest reports Exhibits 2 and 4 respectively, and also other relevant papers for post mortem examination, and sent the dead bodies duly sealed to the Sadar for post mortem examination through Constable Ram Pher Rai and others at 7 P.M the same day. Due to non-availability of P.A.C. truck in the night they proceeded with these two dead bodies, as also the bodies of Mangala Rai and Ram Chandra Rai, in the morning of 28-4-1975. Since the Doctor for conducting post mortem examination was not available on the said day, he produced the identity of the dead bodies before Dr. B.D. Tiwari (PW 26), the Medical Officer, District Hospital, Ghazipur on 29-4-1975. 5. Dr. Tiwari conducted the post mortem examination of Banarasi at 9.30 A.M. on 29-4-1975 and vide post mortem report Exhibit 23 found the following ante mortem injuries : 1. Lacerated wound 3/4" x ¼" x muscle deep at left upper on the lip. 2. Lacerated wound ½" x ¼" x muscle deep on the bridge of nose with fracture of nasal bene. 3. Lacerated wound ½" x ¼" x skin deep on front of right thigh. 4. Lacerated wound 3" x 1" x skin deep occipital region of head. 5. Contusion 2" x 1" on right scapular region. 6. Contusion 4" x 1" x outer vertebrae 6th. 7. Contusion 3" x ½" on right side back. 8. Contusion 3" x 3,4" on the chest. 9. Contusion 6" x 3" on back and outer side of left arm lower part, elbow and left; fore arm. 10. Contusion ?" x 1" on outer side and front of right elbow. The occipital bone under injury no. 4 had fractured. The membranes in an area 2" x 1" was lacerated. 8. Contusion 3" x 3,4" on the chest. 9. Contusion 6" x 3" on back and outer side of left arm lower part, elbow and left; fore arm. 10. Contusion ?" x 1" on outer side and front of right elbow. The occipital bone under injury no. 4 had fractured. The membranes in an area 2" x 1" was lacerated. The brain was also lacerated in an area of 2" x 1" and both occipital lobes had also lacerated. Death was found to be a result of shock and haemorrhage due to brain injuries. 6. The post-mortem examination of Radhey Shyam was conducted on 29-4-1975 at 10.15 A.M. and the following ante-mortem injuries were found vide Exhibit Ka 24. 1. Punctured wound with incised edges 1" x ½" x 1½" on the outer side of left eye between eye ball and other lateral wall entering orbital cavity. 2. Incised wound transverse 1" x ½" x muscle deep on left upper part of lip. 3. Lacerated wound ½" x ¼" x muscle deep on left lower lip. 4. Lacerated wound 4" x 1" x scapular deep on left occipital region of head. 5. Contusion 5" x 2" on upper part of back. 6. Contusion 4" x 2" on the lower part of back. 7. Contusion 3" x 1½" on back left part. 8. Lacerated wound 1" x ½" x muscle outer side of right thigh. 9. Contusion 4" x 1½" x on outer side of right elbow. 10. Contusion 3½" x 1" on outer side of left elbow. 11. Contusion 3" x 2" on outer side of left ankle. Internally the occipital bone under injury no, 4 the membranes and the brain had ruptured and the posterior aspect of both occipital (lobes was lacerated. Death was found to be due to the aforesaid brain injury. Investigating officer Ram Nagtjna Singh on 27-4-1975 itself took blood stained and unstained earth from the spot where the dead bodies of Banarasi and Radhey Shyam had been found in a khalihan of Ram Chandra Rai sealed the same and prepared memo Exhibits Ka 12 and Ka 13. Death was found to be due to the aforesaid brain injury. Investigating officer Ram Nagtjna Singh on 27-4-1975 itself took blood stained and unstained earth from the spot where the dead bodies of Banarasi and Radhey Shyam had been found in a khalihan of Ram Chandra Rai sealed the same and prepared memo Exhibits Ka 12 and Ka 13. On 28-4-1975 under directions of the S.P. ghazipur the investigation was taken over by PW 24 Inspector M.P. Singh who recorded the statements of informant Muneshwar, Bhullan (PW 2), Bulli (PW 3), Munnar (PW S), Smt. Sushila (PW 11), Bhagwania (PW 14), Panch Ratan (PW 18), Ram Ugrah (PW 20) and a few others. He took sample of ash from the burnt house and khalihan in the Harijan basti vide memos Exhibits Ka 21 and Ka 22. On 29-4-1975 he inspected the place of occurrence and prepared site plan Exhibit Ka 20, arrested some accused persons and recorded the statements of Ram Adhar (PW 7), Mangal (PW 9), Gauri (PW 12), Chandrika (PW 17) and Gujrati (PW 21). The same day ha sent six other injured including Ram Adhar and Gujrati for medical examination of their injuries. 7. On 5-5-1975 the Investigating Officer arrested a few more accused persons whose complicity had come to light and recorded statements of the accused persons as well as some injured witnesses. The same day the medical examination was conducted of three more injured persons Smt. Dhelia. Smt. Dashrathi and Smt. Jai Murti. On 7-5-1975 statement was recorded of Ram Briksh (PW 19). On 13-5-1975 process under sections 82 and 83 was executed against the absconding accused persons. 8. Further investigation thereafter was conducted by PW 27 am Acharya Chaubey, inspector Crime Branch C.I.D. from 20-6-1975 who got confirmed the statements of witnesses recorded earlier by examining them again and also recorded statements of ;a large number of other persons conversant with the incident. On 26-6-1975 he submitted charge-sheet for offences under sections 147, 148, 149, 302, 364 IPC against 34 of the named accused persons and on 11-12-1975 laid charge sheet under sections 147, 148, 436, 395, 429, 323, 325 IPC against 66 accused persons including the 34 above, and two others named in the FIR and those whose complicity came to Allahabad in the statements of witnesses during investigation. The learned Sessions Judge charged the appellants, except Mahendra Rai and Ayodhya Rai (34 persons) under sections 147, 302, 364, 436, 429, 324, 325 all read with sections 149 and 395 IPC. He charged the remaining 31 accused persons, including appellants Mahendra Rai and Ayodhya Rai, under sections 147, 436, 429, 323, 324, 325 all read with section 149 and section 395 of the IPC. One of the accused Baikunth Upadhyaya had died after the submission of the charge-sheet. 9. All the accused persons pleaded not guilty to the various charges framed against them. The appellants no. 1 to 34 denied having formed an unlawful assembly and abducted deceased Banarasi and Radhey Shyam from in front of the house of Muneshwar, taken them to the Khalihan of Ram Chandra Rai and committed their murder, by causing lathi and other injuries to them, in the first phase of the incident. They also denied having formed unlawful assembly along with the 32 other accused persons as well as about 400 others in the second phage of occurrence some time after the first phase and committed arson in the Harijan basti, resulting into destruction of houses and other property including cattle heads and the crops in khalihan, haying looted property and caused hurt to the inhabitants of the said basti. The rest of the accused persons also denied having formed the unlawful assembly along with the appellants no. 1 to 34, in the second phase of the incident and to have committed arson, mischief by causing destruction of houses, the other properties, cattle beads, crops in khalihan and causing hurt to the inmates of the Harijan basti. 10. According to the defence version of the incident as set out in FIR Exhibit Kha 7, statements under section 313 CrPC the suggestions in cross examination, the statement of defence witness Ram Prasad, in the wake of the quarrel which took place three days ago on the question of carrying hay by Radhey Shyam, in which Paras Rai beat Smt. Dulari, the sister of Radhey Shyam, in the back ground of simmering tension between the Harijans and the members of bhumidhar caste, near about mid night on 26/27-4-1975, 9-10 assailants including deceased Radhey Shyam and Banarasi came to the Dera of Paras Rai where he, his brother Jagdish Rai and uncle Mangla Rai were sleeping. His father's elder brother Ram Chandra Rai was sleeping a little away towards south near Peeped tree. One of them had a gun, the other a gandasa, Banarasi had a balram, Radhey Shyam and others had Bhalas. The assailant with a gun fired at Mangla Rai who was injured and fell down; another shot fired by the said person caused injuries to Jagdish Rai. When on the alarm raised, several others of the village with Lathis and torches rushed towards the scene of occurrence, the said assailants started fleeing. The same miscreants also killed Ram Chandra Rai at the place where he was sleeping. Those who had arrived at the spot on hearing alarm, gave a good beating to Radhey Shyam and Banarasi who died a short distance from the place where Ram Chandra Rai lay dead. The constables of the police outpost of the village also reached and leaving the dead bodies of Mangla Rai and Ram Chandra Rai in the care of the constables, injured Jagdish Rai was taken to the police station for lodging report. As regards the incident of arson and destruction of property in the Harijan Basti the defence, contention is that the same also occurred in the night, some time after the above incident of murders, and none of the accused persons participated in the same nor could be seen by the witnesses committing arson, mischief and causing hurt. One of the accused appellants Abhai Narain Rai pleaded alibi stating that he was not present in the village on the date of occurrence. One of the accused, appellant no. 35 Mahendra Rai, stated that there was a direct contest between him and one Bhikhari of the family of informant Muneshwar for the post of village Pradhan in the year 1960, in which he won. He is Pradhan of the village continuously since 1956, Harijans were dissatisfied with the allotment of land made by him; he opposed further allotment of land to Harijans despite the orders of the District Magistrate. Although the incident occurred near about the time of mid night, he learnt at about 8 A.M. that Ram Chandra and Mangla Rai have been murdered and two of the assailants have also been caught and killed on the spot. At the same time he learnt about Harijan basti having been set to fire. Although the incident occurred near about the time of mid night, he learnt at about 8 A.M. that Ram Chandra and Mangla Rai have been murdered and two of the assailants have also been caught and killed on the spot. At the same time he learnt about Harijan basti having been set to fire. The village chowkidar had by that time left with injured Jagdish Rai for the police station. The fire in the Harijan Basti had extinguished by about day-break. The Harijans of the area had become naxalites and often indulged in murders, arson and crop cutting, the district administration mostly comprising of Harijan Officers sided with them. The FIR and the G.D. entry regarding this case was made several days later in back date. 11. On behalf of defence four witnesses were examined, DW 1 Ganesh Prasad, Teacher, Primary Pathshala, Dumrao, District Azamgarh stated that on 26-4-1975 at about 7 A.M. accused Abhai Narain Rai an Assistant Teacher in the said school was sent to Mohammadabad Gohna in district Azamgarh for preparing arrear pay bills under orders of the S.D.I. The DW 2 Bindeshwari Prasad, Head Master, Junior High School. Mohammadabad Gohna, District Azamgarh stated about Abhai Narain's presence being recorded in his school's register from 26-4-1975 upto 19-5-1975. DW 3 Surendra Nath Rai was examined about plea of alibi of Kedar Nath Rai, one of the acquitted accused persons. Ram Prasad DW 4 a resident of village Sherpur deposed, the defence version regarding the incident in which according to him while fleeing after killing Mangla Rai, Radhey Shyam and Banarasi were caught and done to death by him and others who came on hearing alarm. In this incident Jagdish Rai was also injured. Ram Chandra Rai had also been done to death. A. little over half an hour after this incident fire was seen engulfing the Harijjan basti. 12. The prosecution in support of its case has examined in all 27 witnesses. Out of these Muneshwar (PW 1), Bhullan (PW 2), Bulli (PW 3) and Ram Ugrah (PW 20) have been examined as eye witnesses of both the phases of incident whereas Khelu, Jai Kishan, Suraj, Ram Adhar, Munnar, Mangla, Smt Shitli, Smt Sushila. Smt. Gauri, Smt. Deepu, Smt. Bhagwania, Radhey, Sunder-Chandrika, Panch Rafan, Ram Briksh, PWs 4 to 19 respectively, and Smt. Gujrati (PW 21), as eye witnesses of the second phase of the incident. Smt. Gauri, Smt. Deepu, Smt. Bhagwania, Radhey, Sunder-Chandrika, Panch Rafan, Ram Briksh, PWs 4 to 19 respectively, and Smt. Gujrati (PW 21), as eye witnesses of the second phase of the incident. Out of these Khelu, Ram Adhar, and Gujrati are injured witnesses. The formal witnesses examined by the prosecution are PW 22 Ram Nagina Prasad, PW 24 M.P. Singh and PW 27 Ram Acharya Chaudhary The three Investigating Officers, (PW 23) Sheo Babu Pathak, Head Constable writer, who recorded the FIR Exhibit Ka 1 of this case and Exhibit Kha 7 of the case relating to murder of Mangla Rai and Ram Chandra Rai, PW 25 Constable Ram Adhar took the dead bodies of the four deceased persons to the mortuary and PW 26 Dr. P.D. Tewari stated about the post mortem examination of the dead bodies of Radhey Shyam and Banarasi. 13. The prosecution also tendered in evidence the medical reports regarding the injures sustained by 16 injured persons of the Harijan basti in this incident. The formal proof of these injury reports has been dispensed with and genuineness admitted by the defence. 14. The injury reports Exhibits Ka 27 to Ka 42 indicate the following position of injuries. Smt. Sunri-One lacerated wound and a contusion which was grievous. Khelu Ram (PW 4)-Two lacerated wounds, two contusions. Smt. Hulsi-Two contusions. Kalmi Devi-Two bruises. Sita Ram-One lacerated wound, four bruises. Smt. Sonbarsi-Two lacerated wounds, two bruises. Smt. Siria-One contusion. Ram Adhar (PW 7)-One lacerated wound, three confusions, five abrasions. Dhanpal-One lacerated wound, two contusions. Smt. Beli-Four 3rd degree burn injuries. Smt. Gujrati (PW 21)-One lacerated wound, three contusions. Smt. Daiya-One 2nd degree burn injury. Ram Jot-Nine contusions, one of them grievous. Smt. Dhelia-One 2nd degree burn injury. Smt. Dasomati-One lacerated wound. Smt. Joi Murti-Two 2nd degree burns and one abrasion. Exhibit Ka 43 is the post-mortem report prepared by Veterinary Doctor indicating the death of 18 cattle on account of burn in the incident in question. 15. Smt. Daiya-One 2nd degree burn injury. Ram Jot-Nine contusions, one of them grievous. Smt. Dhelia-One 2nd degree burn injury. Smt. Dasomati-One lacerated wound. Smt. Joi Murti-Two 2nd degree burns and one abrasion. Exhibit Ka 43 is the post-mortem report prepared by Veterinary Doctor indicating the death of 18 cattle on account of burn in the incident in question. 15. The learned Sessions Judge on the basis of the above said oral and documentary evidence came to the conclusion that the murder of Mangla Rai and Ram Chandra Rai committed in the night of 26/27-4-1975 provided the immediate provocation and .cause for the present incident 'in which Radhey Shyam and Banarasi were first murdered and thereafter a sizeable part of Harijan basti was ransacked, the inmates assaulted, houses were set to fire, resulting into burning of about 175-200 houses including the house-hold goods, grains, 18 cattle heads, crops in Khalihan and also burn injuries to several persons. He further found that taking law in their hands, they avenge the murders of Ram Chandra Rai and Mangla Rai, in which connection deceased Radhey Shyam and Banarsi were named as an accused, the appellants no. 1 to 5 along with several others of the bhumihar caste formed an unlawful assembly in the morning" of 27-4-1975, a little after the sunrise, abducted Radhey and Banarasi from near their houses in Harijan basti, took them to the khalihan of Ram Chandra where he and his brother Mangla Rai lay dead at some distance from each other, and murdered Radhey Shyam and Banarasi in furtherance of the common object of the said unlawful assembly. Not ruling out the presence and participation of appellants no. 6 to 34 also in this incident of abduction and murder, he gave benefit of doubt to the said appellants on these charges on account of the fact that out of PWs 1, 2, 3 and 20, the names only of appellants no. 1 to 5 were mentioned in his statement by the PW 20. He further found that the appellants no. 1 to 34 along with the appellant no 35 (Mahendra Rai; and no. 1 to 5 were mentioned in his statement by the PW 20. He further found that the appellants no. 1 to 34 along with the appellant no 35 (Mahendra Rai; and no. 36 (Ayodhya Rai) and about four five hundred others were members of the unlawful assembly responsible for committing the 2nd phase of this incident, i.e. arson and mischief causing destruction of houses and other property cattle heads, causing simple and grievous hurt by blank weapons and burn injures to the above named 16 persons of the Harijan basti. He also gave benefit of doubt to' rest of the accused persons (29 in number) on account of the fact that though named by the witnesses in their statements under section 161 CrPC and the statements made in court, they were not named in the FIR. Accordingly, he convicted and sentenced accuse appellants no. 1 to 36 as stated above and acquitted the rest of the accused, persons. Aggrieved, this appeal by the convicted accused persons. 16. We have heard S/Shri P.N. Misra and G.S. Chaturvedi, learned counsel appearing on behalf of the appellants and Shri Jagdish Tewari, learned A.G.A. on behalf of the respondents and have gone through the voluminous oral and documentary evidence on record. On behalf of the appellants the findings rendered, and conviction recorded, by the learned trial court has been assailed on a number of grounds. On behalf of the appellants the findings rendered, and conviction recorded, by the learned trial court has been assailed on a number of grounds. It is contended that the prosecution has not come forward with a true story of the incident, it has changed the time of occurrence from the mid night of 26/27-4-1975 to early morning of 27-4-1975; the FIR Exhibit Ka 1 which is the basis of the prosecution story was not lodged at 8.45 A.M. on 27-4-1975 as claimed by the prosecution, fathers was prepared and registered much later at the behest of the police and the; other authorities and was ante- timed, informant Muneshwar is not the author of the FIR, the incident did not occur in the manner stated by the prosecution, rather it took place in the manner stated by the defence in which Ram Chandra Rai and Mangla Rai were done to death while sleeping in their khalihan near about mid nigh', hearing the sound of firing at Mangla Rai those sleeping in the khalihan and also from the nearby locality rushed towards the said scene of occurrence and chased the assailants who included the two Harijans Radhey Shyam and Banarasi. They both were caught, belaboured and killed by their captors (not being appellants 1 to 5 or for that matter 1 to 34), then and there. The burning of Harijan basti was also not a pre-planned act of any unlawful assembly rather appears to be a result of spontaneous reaction of the upper caste people against the Harijans, of account of these two murders of Mangla Rai and Ram Chandra Rai, in the background of the already strained relations and earlier murders of a few bhumihars for which also the Harijans were suspected. The contention further is that the evidence led by the prosecution is not reliable or clinching enough to fasten the liability for any of the offences of which they have been convicted, against the appellants. 17. On behalf of the respondent the judgment of the trial court has been supported, as being well reasoned and based on proper appraisal of evidence, giving benefit of doubt wherever there was the slightest occasion to do so, to the members of the accused party. 17. On behalf of the respondent the judgment of the trial court has been supported, as being well reasoned and based on proper appraisal of evidence, giving benefit of doubt wherever there was the slightest occasion to do so, to the members of the accused party. The author of the FIR Exhibit Ka 1, it is asserted, is informant Muneshwar, it was not ante-timed, there is sufficient and clinching evidence against the appellants to warrant their conviction for the offences of which they have been convicted. The defence version is a mere after thought the incident of murder of Radhey Shyam and Banarasi did not occur near about mid night, rather it occurred in the morning, followed after a short interval by the act of arson and destruction of property etc. by a larger body of persons including the appellants no. 1 to 36. 18. Before entering into a discussion on the rival contentions and versions of the two sides, it will be useful and proper to mention the facts, which are admitted or not disputed. The parties to this litigation admittedly belong to village Sherpur Kalan within jurisdiction of P.S. Bhanwar Kol, district Ghazipur. The two deceased, the first informant and the other victims in this case are Harijans, residing in a separate hamlet known as Harijan basti, slightly away from the main abadi of the village inhabited by the members of other castes and also a few Harijans here and there. The appellants and the other accused persons who have since been acquitted, are bhumidhars by caste. The relations between the members of the two castes were strained since a few years before the present incident. There had been incidents in which some bhumidhars were assaulted and done to death, for which the Harijans were suspected, though not prosecuted. Many Harijans, were, as in the past, working as ploughmen looking after cultivation of the bhumidhars. The deceased Radhey Shyam was the ploughman of accused-appellant Shambhu Rai. 19. Admittedly, three days before the present incident, a dispute between Paras Rai, one of the sons of Shambhu Rai, and deceased Radhey Shyam, had taken place on account of the letter's refusal to carry the hay from the khalihan of Sambhu Rai, which resulted into altercation between the two and Paras Rai slapping Smt. Dulari the married sister of Radhey Shyam who tried to intervene. 20. 20. Also admitted to both sides is that, a series of bizarre incidents took place in the village in question Sherpur Kalan, on 27-4-1975 in which two bhumidhars Mangla Rai and Ram Chandra Rai, both brothers of appellant Shambhu Rai, and two Harijans Radhey Shyam and Banarasi were killed, another bhumihar Jagdish Rai son of Shambhu Rai was injured by gun shots, a sizeable section of Harijan basti was set to fire and reduced to ashes resulting into loss of property, death of catties, and burn as well as other injuries, to 16 Harijans including women. The dispute between the parties is that according to the informant party, (the Harijans) Mangla Rai and Ram Chandra Rai were murdered and Jagdish Rai injured, by unknown assailants who could not be seen, some time in the night of 27-4-1975. Coming to know of the same and suspecting the Harijans to be responsible for the said incident, a group of 34 bhumidhars (appellants 1 to 34) armed with various weapons soon after day-break went to the Harijan basti, picked up Radhey Shyam and Banarasi from in front of their houses, took them to the khalihan of Ram Chandra Rai and in full view of their family members beat and killed both of them. Shortly afterwards a group of about four-five hundred bhumidhars including the 66 charge-sheeted accused persons (36 named in the FIR and 30 in the statements under section 161 CrPC led by appellant Mahendra Rai) raided the Harijan basti and committed arson, resulting; into destruction of property, death of cattle and also caused injuries. The informant Muneshwar who rushed to the police station while the basti was still burning, lodged the FIR at the Police Station promptly at 8 45 A.M. the same day. 21. On the other hand, according to the defence version the entire incident took place around mid night. The version of the accused party is that, after killing Ram Chandra Rai when the assailants attacked deceased Mangla Rai, and fired gun shots at him and Jagdish Rai, their family members and others having their houses in the vicinity, rushed to the khalihan of Ram Chandra Rai where the said incident took place, and saw deceased Radhey Shyam and Banarasi along with 7-8 other persons fatally assaulting Mangla Rai. They were given a chase and Radhey Shyam and Banarasi were apprehended and lynched on the spot at the same time. The incident of arson and the resultant destruction of properties and injuries, in the Harijan basti also occurred shortly thereafter in the night, and not in the morning. The story about killing of Radhey Shyam and Banarasi in the morning, the participation of appellants no. 1 to 34 in the said Act, and the appellants no. 1 to 36 being amongst the large number of persons responsible for arson and destruction of property etc., is .a product of imagination and a result of after thought as none of the prosecution witnesses had seen the incident which resulted into death of Radhey Shyam and Banarasi nor the persons indulging in arson could be seen or identified. The FIR Exhibit Ka 1 of Muneshwar was prepared after deliberations and at the instance of the police and other authorities much later and is ante-timed, whereas the FIR Exhibit Kha 7 by Jagdish Rai was lodged promptly at 7 A.M. on 27-4-1975. 22. As stated above, the prosecution in support of its version relies on the testimony of PWs. 1 to 21. Four out of these (PWs 1 to 3 and 20) are eye witnesses of the first phase of incident in which deceased Radhey Shyam and Banarasi were done to death, whereas all the 21 are the eye witnesses of the second phase, of arson, destruction of property and causing hurt. It will thus be proper to first deal with that part of the incident which relates to the alleged murder of accused Radhey Shyam and Banarasi, and discuss the testimony of the PWs 1 to 4 on this point. 23. On this point, the statement of the PW 1 Muneshwar, who is also the informant is to the effect that on the date of occurrence at about 6 A.M. he was present at his home. His son Radhey Shyam was also present. The, thirty four accused persons Shambhu Rai, Bombay Rai (alias Uma Shanker Rai), Abhai Rai, Kashi Ram, Dina Rai, Harihar Rai, son of Lodi Rai. Guru Dutt Rai, Udai Rai, Baliram Rai, Munnii Lal. His son Radhey Shyam was also present. The, thirty four accused persons Shambhu Rai, Bombay Rai (alias Uma Shanker Rai), Abhai Rai, Kashi Ram, Dina Rai, Harihar Rai, son of Lodi Rai. Guru Dutt Rai, Udai Rai, Baliram Rai, Munnii Lal. Lalau and, Raghunath, Vindhyachal Rai, Nand Kishore, Chandrahas Rai, Sita Rai, Rama Rai, Uma Rai, son of Bandan Rai, Chhabi Nath Rai, Chandradeo, Janardan Rai, Singhasan Rai, Kamaksha Rai, Raja Ram Rai, Sheomuni, Tarkeshwar, son of Suraj Rai Tarkeshwar son of Ram Raksha Rat, Basan Rai, Civil Rai, Sudarshan Rai, Harihar Rai, son of Lubri Rai, Mukteshwar, Uma Rai, son of Chandrika (appellants 1 to 8 and 10 to 34) came there. They were armed with lathis, bhala and dandas. Shambhu Rai and Rombay Rai caught hold of Radhey Shyam, whereas Kamaksha Rai and Tarkeshwar, son of Suraj Rai caught Banarasi whose house is just behind the house of the informant. All the 34 persons took Radhey Shyam and Banarasi to the Khalihan of Shambhu Rai situated towards east of the village. He, Mohan, Sohan, Phoolan (PW 2), Bulli (PW 3) and Ugrah (PW 20) followed them. Reaching near the said khalihan these persons requested the accused persons to spare Radhey Shyam and Banarsi who were innocent, but they paid no head and badly beat Banarasi and Radhey Shyam, mostly by lathis, legs and fists and killed them on the spot. Thereafter they raised slogans heralding their victory and said that the 'chamraut' (Harijan basti) should be burnt. On hearing this, the informant and others witnessing the incident nan towards the Harijan basti. All the above named 34 accused persons along with village Pradhan Mahendra Rai, Ayodhya Rai (appellants no. 35 and 36) and followed by a big crowd of four to five hundred bhumihars came shortly thereafter from the 'Dera' of Mahendra Rai towards the 'chamraut, and first they set fire to the house of Ghuru Chamar in the western part of the basti and thereafter set to fire several other houses, huts and khalihans which all started burning along with the grains, other house hold articles as well as catties. Seeing the fire having engulfed the said part of basti from all sides he rushed towards the police station. On way, he took lift from a cyclist who took him to the police station. There he orally lodged FIR Exhibit Ka 1. Seeing the fire having engulfed the said part of basti from all sides he rushed towards the police station. On way, he took lift from a cyclist who took him to the police station. There he orally lodged FIR Exhibit Ka 1. When he had gone to the khalihan where the incident took place following Radhey Shyam and Banarasi and their captors, he saw the dead body of Ram Chandra Rai almost lying in the khalihan and then learnt about Ram Chandra Rai and Mangla Rai having been murdered. Cross examined, he stalled that he and Radhey Shyam had woke up a few minutes before the arrival of the accused persons. Radhey Shyam was still sitting on his cot when the accused persons came and catching hold of his arm dragged him to the khalihan without saying anything. The residents of the basti who also woke up when Radhey Shyam was being taken, and those who followed Radhey Shyam and Banarasi, including him, did not enquire from the accused persons as to why the two were being dragged away, but the accused were talking amongst themselves about the hand of Radhey Shyam and Banarasi in the murder of Ram Chandra and Mangla Rai. On way from Harijan basti up to the khalihan the distance about four furlongs also he and other witnesses did not raise any alarm. They only kept requesting the accused to spare the two. The accused persons also did not threaten them nor ask to run away. Immediately after she murder, he did not rush to the police station as he intended to first inform the Pradhan, but seeing the gathering of people at the Pradhan's 'dera', he was deterred. He saw the incident of arson. He along with other witnesses saw the incident of arson from behind 'behya' shrubs near the Harijan basti. At the police station after recording his FIR the Head Constable: told him that Jagdish Rai had already told him about the entire incident arid force had been sent. He returned to the village near about noon. He did not see any of the accused persons in the village at that time. On the day the incident of assaulting Radhey Shyam and his sister Dulari had taken place a meeting of a few persons in the Harijan basti took place but no meeting was held in the night. 24. He returned to the village near about noon. He did not see any of the accused persons in the village at that time. On the day the incident of assaulting Radhey Shyam and his sister Dulari had taken place a meeting of a few persons in the Harijan basti took place but no meeting was held in the night. 24. PW 2 Phoolan, another resident of the Harijan basti in question, naming appellants no. 1 to 11, 14 to 16, 18 to 27, 29 to 34, stated that on the date of occurrence at about 6.30 A.M. 34 persons of which he named appellants no. 1 to 11, 14 to 16, 18 to 27, 29 to 34, came in a group, armed with lathis, gandasa and bhala to the house of Muneshwar Harijan, caught Radhey Shyam and Banarasi and took them towards east in the direction of the khalihan of Ram Chandra Rai. He, Muneshwar, Bulli, Sohan, Mohan and Ugrah followed them. The accused persons took Radhey Shyam and Banarasi to the khalihan of Ram Chandra Rai where the dead body of Ram Chandra Rai was also lying and enquired as to who committed murder of Ram Chandra Rai, to which Radhey Shyam and Banarasi replied that they did not know. On this all the 34 persons started belabouring Radhey Shyam and Banarasi by lathis and did not stop despite requests with folded hands by Muneshwar and other witnesses. They killed both Radhey Shyam and Banarasi on the spot and exhorted to catch the witnesses also. Thereupon they ran towards the chamrauti followed by the thirty four accused persons. From towards west, Pradhan Mahendra Rai and Ayodhya Rai (appellants 35 and 36), followed by four five hundred other persons, came towards the Harijan basti. All these persons first set to fire by sprinkling kersone oil the hut of Ghuru. Thereafter raising slogans of victory all these miscreants scattered into the whole of the Harijan basti and started indiscriminately setting to fire the other houses. When the inmates including females and children started fleeing with utensils etc., some members of the said mob started beating them, and some others indulged in loot. They also set to fire crops kept in. khalihan in the chamrauti, with the result that the; entire basti along with the grains, cattle and other properties started burning. When the inmates including females and children started fleeing with utensils etc., some members of the said mob started beating them, and some others indulged in loot. They also set to fire crops kept in. khalihan in the chamrauti, with the result that the; entire basti along with the grains, cattle and other properties started burning. From behind behya shrubs in the vicinity of the Harijan basti, he and the other witnesses named above, saw this entire incident. Muneshwar proceeded towards the police station from their place of hiding, while they remained there till the arrival of the police. Cross examined, he stated that he was passing from near the house of Muneshwar on way to his 'Dera' when he saw the 34 accused persons taking Radhey Shyam and Banarasi from the said place towards the khalihan of Ram Chandra Rai, no one questioned the accused persons as to why they were taking Radhey Shyam and Banarasi, only the wife of Muneshwar and others were talking in a hushed voice as to why the Babus (Bhumihars) were taking the two persons with them. He also did not hear or see Radhey Shyam and Banarasi saying anything to their captors for making any efforts to free themselves in the khalihan. He and others for the first time realised danger to the lives of Radhey Shyam and Banarasi when the accused started beating them, and then for the first time they knew that Ram Chandra Rai has been murdered and in that connection the two had been brought there. None of the witnesses or the family members of the two deceaseds went near them to save them from beating. After running from the khalihan of Ram Chandra Rai when they reached near the Harijan basti, they did not think of informing anyone in the said basti about the incident, rather took shelter behind the 'behya' shrubs. The PW 3 Bulli also a resident of the Harijan basti in question, having his house close to that of informant Muneshwar, referring the appellants no. 1 to 34 by name, stated that on the date of occurrence at about 6.30 A.M. after attending the call of nature be was smoking Hukka in front of his house. When hearing noise he reached in front of the house of Muneshwar. There he saw Banarasi having already been brought in front of the house of Muneshwar. 1 to 34 by name, stated that on the date of occurrence at about 6.30 A.M. after attending the call of nature be was smoking Hukka in front of his house. When hearing noise he reached in front of the house of Muneshwar. There he saw Banarasi having already been brought in front of the house of Muneshwar. All these accused persons also caught hold of Radhey Shyam the son of Muneshwar, and took both Banarasi and Radhey Shyam to the khalihan of Ram Chandra Rai. He, Muneshwar,, Phoolan, Mohan, Sohan and Ugrah followed them. There he saw the accused persons, one or two of whom were armed with ballam and gandasa, and the rest with lathis, belabouring Radhey Shyam and Banarasi with their weapons till they both fell dead. Those following the victims did not do anything except requesting the accused assailants to spare the two victim. After accomplishing the said task when the assailants raised slogans heralding their victory, he and the other witnesses who saw the incident, ran towards the basti, and hid themselves behind behya shrubs on the outskirts of the said basti. Behind them the assailants also moved towards the said basti. From the place of their hiding they also saw accused appellants Mahendra Rai and Ayodhya along with a group of four five hundred persons coming from the 'Dara' of Mahendra Rai towards the Harijan basti He did not identify the said other persons because he was trembling on account of fear. Entering the Harijan basti from south all the miscreants of both the groups surounded the said segment of the basti from east and west and indiscriminately stated setting to fire houses, khalihans and other properties. Cross examined he stated that during the days of incident the time of sun-rise was 5.30 A M. in the morning. The sun had arisen about 1- 1 1/2 hours before he he heard noise and reached near the house of Muneshwar. He saw Banarasi and Radhey Shyam being dragged away from the basti to the khalihan of Ram Chandra Rai which is at a distance of about four furlongs. During this entire incident nobody tried to intervene or save the two victims, Cross examined, he further stated that the murder of Radhey Shyam and Banarasi had taken place near about 7.30 A M. and the incident of arson Cook place about 20 minutes thereafter. 25. During this entire incident nobody tried to intervene or save the two victims, Cross examined, he further stated that the murder of Radhey Shyam and Banarasi had taken place near about 7.30 A M. and the incident of arson Cook place about 20 minutes thereafter. 25. The fourth witness on this point Ram Ugrah, PW 20, also stated that he was at his house in the Harijan basti, when immediately after sunrise Shambhu Rai, Kamaksha Rai. Munna Lal Rai Chandradeo Rai, Udai Rai and Nand Kishore Rai (appellants 1 to 5 and 24) in all 30-32 persons came to the house of Radhey Shyam. Catching hold of Radhey Shyam and Banarasi, they took them to the place where the dead bodies of Ram Chandra Rai and Mangla Rai were lying. He, Muneshwar, Sohan, Bulli and Mohar followed them asking the accused persons as to where they were taking the two, to which the accused replied that they would tell shortly. Taking the two near the dead bodies of Ram Chandra Rai and Managla Rai, the captors of Radhey Shyam and Banarasi asked as to why they killed those two persons, when they denied having so done, all the assailant; badly beat the two by lathis, legs and fists, till they both fell dead. When he and others objected, the assailants exhorted to kill them also, on which they ran for their life towards the chamar tola (Harijan basti and hid themselves near the tube well. After killing Radhey Shyam and Banarasi, they returned to the 'Dera' of Mahendra Rai (appellant no. 35) from where accompanied by Mahendra Rai, Ayodhya Rai and more than 400 others, the said assailants came to the Harijan basti and set to fire the houses in the said basti. His house was gutted and buffalo died in the side incident, besides other properties. Cross examined, he stated that a day or two before this incident a meeting of Harijans had taken place at the house of Muneshwar. On the date of occurrence he woke up about an hour before the day break when he had heard that two bhumidhars had been murdered and Jagdish Rai had been injured, but he did not hear as to who were the assailants. He also learnt that Jagdish Rai had gone to the police station to lodge the report. On the date of occurrence he woke up about an hour before the day break when he had heard that two bhumidhars had been murdered and Jagdish Rai had been injured, but he did not hear as to who were the assailants. He also learnt that Jagdish Rai had gone to the police station to lodge the report. The chamraut (Harijan basti) was burnt about 1½ hours after the incident of killing Radhey Shyam and Banarasi. He was standing all alone near the tubewell, from where he saw the incident, whereas Muneshwar and others hid themselves elsewhere in the near vicinity. 26. As indicated above, the learned Sessions Judge in regard to the first phase of the incident accepted the testimony of the PWs 1, 2, 3 and 20 partially. He held that the killing of Radhey Shyam and Banarasi took place early in the morning as contended by the prosecution, that they were picked up from in front of their house in the Harijan basti, brought to the khalihan of Ram Chandra Rai by a group of 34 bhumidhars, and were murdered in cold blood by inflicting injuries mostly by lathis and also ballam and gandasa. But the participation of only five of them (appellants 1 to 5) as members of the aforesaid unlawful assembly of 34 persons is established beyond doubt, from the evidence. The evidence when critically examined, in the light of the various attending circumstances and tested on the touchstone probabilities will, however, reveal that the prosecution version with regard to this part of the incident cannot be accepted without a pinch of salt, and he incident in which Radhey Shyam and Banarasi were done to death, in all probability, occurred not in the morning, but sometime after midnight and before daybreak, and it also took place in the manner and circumstances some what different than alleged by prosecution. 27. 27. Although not stated by the parties in specific terms, the apparent tenor of the version of both of them is that, the entire series of incidents in which Mangla Rai, Ram Chandra Rai, Radhey Shyam and Banarasi lost their lives was a sequel to the widening gap between the Harijan and bhumidhars, compounded by the incident which took place three days ago in which deceased Radhey Shyam was assaulted and his married sister Dulari was slapped, by one of the bhumihars Paras Rai, the son of appellant no. 1 Shambhu Rai and nephew of deceased Mangla Rai and Ram Chandra Rai. The accusation for the murder of Mangla Rai and Ram Chandra Rai and injuries to their another nephew Jagdish Rai, fell on a group of Harijans, including Radhey Shyam and Banarasi, in so far as according to the accused party the said murders and assault on Jagdish Rai were committed by Radhey Shyam and Banarasi along with 7-8 other persons, who were seen by a number of witnesses committing the said crime. Although not admitting the said version of the defence, the informant PW 1 Muneshwar as well as the three other witnesses on this point, PW 2 Phoolan, PW 3 Bulli, and PW 20 Ram Ugrah have themselves stated that while taking Radhey Shyam and Banarasi Co the khalihan of Ram Chandra Rai, where they were murdered, as well as before committing murderous assault on there, their captors kept on asking them as to why they have murdered Ram Chandra Rai and Mangla Rai. 28. Now, in the above background, if we consider the entire gamut of the evidence about this phase of the incident, the only reasonable conclusion deducible will be that, Radhey Shyam and Banarasi were killed not in cold blood and in the manner, and at the time, stated by the prosecution, rather the said killing occurred in the same sequence of events in which Ram Chandra Rai and Mangla Rai were done to death and Jagdish Rai received injuries. Admittedly, the Dera and khalihan of Ram Chandra Rai where the aforesaid persons were done to death and Jagdish Rai was injured, is situated not very far of from the main abadi of village Sherpur Kalan as well as the hamlet containing Harijan basti. Admittedly, the Dera and khalihan of Ram Chandra Rai where the aforesaid persons were done to death and Jagdish Rai was injured, is situated not very far of from the main abadi of village Sherpur Kalan as well as the hamlet containing Harijan basti. The date of incident 27-4-1975, being, almost at the fag end of the month of April, the inmates of these abadis could very well be expected to have been sleeping in the open than behind closed door of their houses, a fact also borne out from the statements of PWs 1, 2, 3, and 20. Under these circumstances, the assault on Mangla Rai, Ram Chandra Rai and Jagdish Rai could not have gone unnoticed. There can be no presumption that despite being so severely assaulted as to lead to the instantaneous death of two of them on the spot, the victims Mangla Rai, Ram Chandra Rai and Jagdish Rai would not have raised alarm so as to attract their family members and others living, or present, in the near vicinity. It will be all the more so in view of the fact that apart from other lethal weapons, even fire arm was used in the said incident and injuries by it were used to Mangla Rai and Jagdish Rai. In this state of affairs, the act of the informant and other witnesses of the prosecution, of feigning ignorance about the murderous assaults on the three persons, and their claim to have for the first time learnt about these murders in the morning, and that too from the captors of Radhey Shyam and Banarasi, can hardly be accepted. Once it is found that the murder of Mangla Rai and Ram Chandra Rai and assault on Jagdish Rai in the khalihan and Ram Chandra Rai did not remain unnoticed at the time of its commission, the theory of the defence, to the effect that during the course of attack on Ram Chandra Rai and Jagdish Rai, when alarm was raised and the witnesses reached and gave a chase, two of the assailants, deceased Radhey Shyam and Banarasi were apprehended and were instantly done to death by the said persons, amply corroborated by the testimony of the DW, as well as the circumstances, cannot be lightly brushed aside. 29. 29. In regard to the incident in question, the accused-appellants on their part have besides the various infirmities and improbabilities in the prosecution evidence, also relied on Exhibit Kha 7, copy of the FIR, lodged by Jagdish Rai, an injured in the cross case and the statement of PW 4 Ram Prasad. According to Exhibit Kha 7 in the night of 26/27-4-1975, 9-10 assailants including deceased Radhey Shyam, deceased Banarasi, Ganga Rai, Sheo Nath, committed murders of Ram Chandra Rai and Mangla Rai. He and others sleeping in the khalihan woke up on hearing sound of fost-steps and saw one of the assailants with a gun firing at Mangla Rai, who fell injured. On alarm raised by him and his brother, Ram Prasad, Chetan Rai, Raja Ram, sleeping nearby and several others from the village, came armed with lathis flashing torches. The assailant with gun, fired at him causing injury in his right arm He and others saw and recognised the assailants in the light of torches, who all ran away from the spot. A little away from the said place was seen Ram Chandra lying dead. The Constables of the nearby Police outpost also reached the spot shortly thereafter, and leaving the dead bodies in their care, he rushed to the police station for lodging report. 30. The DW 4 Ram Prasad stated that in the night in question on hearing alarm coming from the 'Dera' of Ram Chandra Rai he as well as 40-50 others rushed towards that direction they saw the assailants assaulting Mangla Rai, one of them with gun fined at Jagdish Rai, who was injured. Seeing the large number of people rushing towards them, the assailants ran towards south and then towards west, two of them Radhey Shyam and Banarasi were chased, beaten and apprehended. People thereafter said that Radhey Shyam and Banarasi too have died. In reply to the questions in cross-examination by the prosecution counsel, he specifically stated that he Raja Ram Chengan and several others were amcongit the persons, who beat Radhey Shyam and Banarasi to death. Flames engulfing the Harijan basti were seen after about half an hour. Jagdish Rai was also amongst the persons who chased the assailants. In reply to the questions in cross-examination by the prosecution counsel, he specifically stated that he Raja Ram Chengan and several others were amcongit the persons, who beat Radhey Shyam and Banarasi to death. Flames engulfing the Harijan basti were seen after about half an hour. Jagdish Rai was also amongst the persons who chased the assailants. The most important factor which goes to render this part of the prosecution story doubtful, is the manner, and the circumstances, in which deceased Radhey Shvam and Banarasji are alleged to have been taken away from their houses in broad day light, and in full view of the entire population of the Harijan basti, including their family members, without even a semblance of obstruction or objection. As per evidence the Harijan basti consists of several hundreds of houses, and population running in four figures. It is difficult to believe that if as alleged, the abduction by a band of 34 armed bhumihars and that too for committing assault and even murder, took place in the morning, the people of the caste and locality of the two victims, would not have resisted such act, and only a handful of them, not including even the mothers of the victims, would have followed them. It is not their contention that the accused persons while taking Radhey Shyam and Banarasi to the Khalihan, at any stage threatened the informant and others, or objected to their following them. 31. To say that the Harijans, did not react in the way, they should have, because of the respect and awe in their minds towards these members of the upper caste, and also because such taking away of the Harijans was a routine affairs, also does not stand to reason. 32. In fact, it is clear from the own evidence of the prosecution witnesses, including the public officials and the statements of the accused, that since past few years the Harijans had become an aggressive lot in so far as number of attacks, including murderous ones, on she bhumihars had taken place and FIRs had been lodged against Harijans in these regard. Even those working as ploughmen were also becoming resistant as would appear from the insistence of deceased Radhey Shyam to work on his own terms as ploughman of Shambhu Rai it is further strengthened when we see that a meeting of Harijans at the house of informant Muneshwar, had taken place on the day on which on account of refusal of Radhey Shyam to carry hay from khalihan of Shambhu Rai, Paras Nath Rai had assaulted Radhey Shyam and Dulari. The holding of such meeting in the background of the previous strained relations between two communities, clearly indicates that Harijans would not easily submit to the dictates of the bhumidhars, and were no longer willing to tolerate and swallow the insults heaped on them. Under these circumstances, it does not stand to reason that because of sheer respect and awe in which the bhumihar community was held by the Harijans, the neighbours and family members of deceased Radhey Shyam and Banarasi, and those residing in their 'Basti' did not object to the taking away of these two persons by the accused, person did they attempt to rescue them from their lutches. Even if it may be assumed for argument sake that the informant and the other residents of the locality did not in the beginning know, or realise, that Radhey Shyam and Banarasi were being taken to the khalihan of Ram Chandra Rai with a view to put them to any serious harm, when after questioning them about the reason far murdering Mangla Rai and Ram Chandra Rai they according to the prosecution, were mercilessly beaten by lathis, lets and fists, and one of them Radhey Shyam even by ballam and gandasa, they would certainly have realised the gravity of the situation that the two would be killed. The only natural reaction of the parents and other close to the victims, under these circumstances would have been to save their life by putting ail possible sorts of resistance. In such a situation, no one close to the victims, much less father or a family member, would remain passive or merely beg the assailants to spare the life of the victims. It is all the more so when we find that the alleged assailants did not have any fire arms, and their number was not also such as could not be overpowered by persons from she thickly populated Harijan basti nearby. It is all the more so when we find that the alleged assailants did not have any fire arms, and their number was not also such as could not be overpowered by persons from she thickly populated Harijan basti nearby. Yet another factor, and a very important one, which goes to make prosecution theory doubtful, is the nature of injuries suffered by the two deceased. According to Che statement of the PW 1 informant Muneshwar and PW 3 Bulli, Radhey Shyam and Banarasi were dragged from the Harijan basti up to the khalihan of Ram Chandra Rai. The distance between the two places is about 4 furlongs. Even if two victims were dragged up to a fraction of this distance by their captors, they would have received a good number of bruises on their body. The post mortem examination report, however, does not show any such injury or mark of rubbing against through ground. This is indicative of the fact that the theory of the two victims having been caught, taken and dragged away to the place where they died, is mere a product of imagination than reality. 33. No doubt as pointed out by the learned counsel for the State, there is some difference in the defence version as contained in the cross FIR, Exhibit Kha 7, and the testimony of DW 4 Ram Prasad in so far as in Exhibit Kha 7 there is mention to the effect that Radhey Shyam and Banarasi were chased and apprehended and beaten to death on the spot, and to this extent there is concealment of facts in the same, but on this ground alone the defence version cannot be discarded, more so when it has been categorically stated by DW 4 Ram Prasad, a resident of the locality, that these two persons Radhey Shyam and Banarasi, who were amongst the assailants, were apprehended on the spot and lynched by the crowd of about 40-50 persons, who had rushed towards the scene of murder of the two bhumihars on hearing alarm, and it also supported by the various cinching circumstances stated above. 34. In this regard we can also not lose sight of the legal position the burden on the defence, unlike the prosecution, is not to prove its version beyond reasonable doubts. 34. In this regard we can also not lose sight of the legal position the burden on the defence, unlike the prosecution, is not to prove its version beyond reasonable doubts. All that is required of it, is to show, by evidence and circumstances, that its version competes in probability with that of the prosecution, and is not merely a product of imagination. Even if it may be a fact that the 40-50 persons, who killed Radhey Shyam and Banarasi, were mostly bhumihars and the appellants, for some of them, might also have participated m the said act, on that hypothesis alone the guilt for the offence of murder of these two persons cannot be fastened on appellants no, 1 to 5. The prosecution having came forward with a specific story regarding the manner of these killings and the participants therein, can succeed only on establishing the same, and not on mere weaknesses in the defence version. All above discussed factors when taken into consideration cumulatively, thus, in our opinion, indicate that the prosecution version in regard to this part of the incident is acceptable only to the extent that, the two deceased Readhey Shyam and Banarasi were done to death by some bhumihars, but the rest part of it cannot be accepted. The evidence led by it is not clinching, or sufficient, to establish that deceased Radhey Shyam and Banarasi, shortly after sunrise were dragged, or taken away from their houses in the Harijan basti, to the khalihan of Ram Chandra Rai, by an armed band of 34 bhumihars, including the appellants no 1 to 5, and were beaten to death by these persons in full view of the PWs 1 to 3, 20 and others of the Harijan basti. On the other hand, the circumstances, which are quite clinching, indicate that Radhey Shyam and Banarasi were done to death sometime before day-break on being caught from amongst the assailants fleeing after committing the murder of two bhumihars, Mangla Rai and Ram Chandra Rai and causing injury to Jagdish Rai. On the other hand, the circumstances, which are quite clinching, indicate that Radhey Shyam and Banarasi were done to death sometime before day-break on being caught from amongst the assailants fleeing after committing the murder of two bhumihars, Mangla Rai and Ram Chandra Rai and causing injury to Jagdish Rai. The possibility under these circumstances is that the informant and others of the Harijan basti, who had gone towards the scene of murder on hearing noise, might have seen the last part of the said incident, in which those who had caught Redhey Shyam and Banarasi battered them to death, and either by coining a story to wreak vengeances, or may be genuinely thinking that the two were murdered in cold blood, in retaliation to the murder of Mangla Rai, Ram Chandra Rai, further strengthened by the subsequent act of the accused persons and others of the bhumihar community, of indulging in arson and large-scale destruction of the property in Harijan basti, they put forth the story of the appellants no 1 to 34 being responsible for these two murders, unconnected with those of Mangla Rai and Ram Chandra. 35. Although the accused appellants have challenged the veracity of the prosecution case besides the above, also on the ground that the time of incident alleged by the prosecution and its witnesses, 6 A.M. or so (i.e. shortly after sun-rise), is not true, a close analysis of the evidence with regard to the entire matter would go to unmistakably show, that even the defence version regarding both phases of the incident having occurred around mid-night is not correct In the cross FIR, Exhibit Kha 7, lodged by Jagdish Rai, son of appellant Shambhu Rai at 7 A.M. on 27-4-1975, at police station Bhanwarkoal, on exact time by watch of the incident is mentioned rather the expression near about mid-night has been used. The maker of the FIR Jagdish Rai, also an injured, was not examined in this case. The PW 4 Ram Prasad also used the same expression regarding the time of incident in his deposition, with regard to the incident of murders of Mangla Rai and Ram Chandra Rai, and killing on spot of Radhey Shyam and Banarasi and gave the time of incident of arson as 1 A.M. 36. The PW 4 Ram Prasad also used the same expression regarding the time of incident in his deposition, with regard to the incident of murders of Mangla Rai and Ram Chandra Rai, and killing on spot of Radhey Shyam and Banarasi and gave the time of incident of arson as 1 A.M. 36. The most important factor, which goes to show that even the incident of murder of Mangla Rai and Ram Chandra Rai. and injuries to Jagdish Rai, occurred not in, or around, mid night, rather it must have occurred much thereafter, though before dawn, is that the FIR, Exhibit Kha 7 was lodged at the police station at 7 A.M. on 27-4-1975. The distance of the police station from village Sherpur Kalan is 5 miles. Even if covered on foot, or, as claimed by the defence, Jagdish Rai went to the police station on a cot, two hours' time or even less, could be taken in reaching the police station. It is in the evidence of both the sides that Jagdish Rai left for the police station shortly after the incident Under these circumstances, counted back from the time of lodging of the FIR the incident of murder of Mangla Rai and Ram Chandra Rai or the killing: by Radhey Shyam and Banarasi must have occurred around 4-5 A.M., in no case, before it. This factor will also go to indicate that the time of incident of murder stated by the prosecution though not wholly correct, is not inaccurate to the extent claimed by the defence, the difference being only of about an hour or so. The prosecution version regarding murder of Radhey Shyam and Banarasi, thus, cannot be rejected on the ground of these killings having taken place at raid night. However, as already stated above, on the evidence led by it, the prosecution has failed to prove beyond reasonable doubts that these two persons were abducted, and their murder was committed by the appellants no. 1 to 5 along with 29 others at about 6 A.M. on 27-4-1975, in full view of their family members and others of the locality. The conviction of the appellants Shambhu Rai, Kamaksha Rai, Munni Lal Rai, Chandradeo Rai and Udai Rai, for the offences under sections 147, 302/149 and 364/149 IPC recorded by the learned Additional Sessions Judge, thus, in our opinion, is unsustainable and deserves to be set aside. The conviction of the appellants Shambhu Rai, Kamaksha Rai, Munni Lal Rai, Chandradeo Rai and Udai Rai, for the offences under sections 147, 302/149 and 364/149 IPC recorded by the learned Additional Sessions Judge, thus, in our opinion, is unsustainable and deserves to be set aside. 37. Now we came to the second phase of the incident, on which the charges under sections 147, 436, 429, 321 and 325 all read with section 149 of the IPC rest. As apparent from both the parties versions, and submissions narrated above, there is now no dispute that the killing of Mangla Rai, Ram Chandra Rai, Radhey Shyam and Banarasi was followed by a large-scale arson in which about 175-200 houses of the Harijans situated in the Harijan basti were set to fire, leading to destruction of those houses with all the belongings, death of 18 cattle heads, and injuries, simple and grievous, by blunt weapons as well as burns, to 15 residents of the said basti, including 11 women 38. Although it was stated by accused appellant Shambhu Rai and some other accused persons that the Harijans themselves as a counterblast to the murder, set to fire their own basti, the same was not followed by any concrete suggestion or material to substantiate. It is also hardly believable that the Harijans who had already suffered two casualties in the previous incident, would have further compounded their misery by burning their own houses, cattle and other properties and even inflicting injuries to such a large number of persons. If as suggested by these accused persons, the mischief by fire was the own doing of the residents of the Harijan basti they would not have done the same without taking precaution to evacuate their houses, to avoid burning even of the cattle and burn injuries to several persons. This theory thus was rightly rejected by the learned Sessions Judge, with the contempt it deserved. In fact, the principal character of this part of the drama, appellant no. 35 Mahendra Rai, the then village Pradhan of Sherpur Kalan, has while giving the defence version in detail, at no stage, stated that the incident of arson was the own doing of the inmates of Harijan basti. 39. On its part, the prosecution has examined as many as 21 witnesses (PWs 1 to 21) in support of its contention regarding the appellants no. 39. On its part, the prosecution has examined as many as 21 witnesses (PWs 1 to 21) in support of its contention regarding the appellants no. 1 to 36, along with a big mob of bhumihars,, four five hundreds in all, having formed an unlawful assembly, raiding the Harijan basti, and indulging in person, destruction of property and causing hurt. It will be useful to give here a brief resume of the testimony of these witnesses. 40. The PW 1 Muneshwar, PW 2 Phoolan and PW 3 Bulli stated that shortly after Radhey Shyam and Banarasi were killed, the 34 accused persons (appellants no. 1 to 34) raising of slogans of victory, proceeded towards the Harijan basti. From the 'dera' of the Pradhan situated west of the basti, about 400-500 others led by Mahendra Rai and Ayodhya Rai also came towards the basti. They first set to fire the house of Guru Chamar and surrounding the basti from all sides they set to fire houses, huts and khalihans and also beat the inmates The PW 4 Khelu stated that at about 7 A.M. on the day of incident he was present in front of his house when he saw smoke emanating from the segment of the Harijan basti. Suddenly, 15-20 persons came near his house shouting. Bombay Rai, Baliram Rai, Markandey Rai from amongst them set his house to fire and when he requested them not to do so, they beat him by lathis, resulting into injuries, when his wife Hulsi questioned them as to why they were so doing they beat her also. His entire belongings and house were burnt. 41. The PW P Jai Kishan stated that at about 7.30 A.M. while he was at his home in the southern part of the chamrauti, 30-40 persons came there. Dina Rai, Abhai Rai, Mukteshwar set his house to fire, which was burnt with most of the belongings. He also saw Vindhyachal, Sheo Govind, Mangru Rai, Satya Prakash, Bachau, Radiha Kishan, Kashi Rai, Ganesh Rai, Lalau Rai, and Baikunath amongst the miscreants. 42. The PW 6 Muruj has his house in the south-eastern part of the cham-toli and stated that at about 7 A.M. on the day of incident he was at his home when Mohan came running and informed about the killing of two. bhumihars and two Harijans and also about the bhumihars rushing towards the Harijan basti. 42. The PW 6 Muruj has his house in the south-eastern part of the cham-toli and stated that at about 7 A.M. on the day of incident he was at his home when Mohan came running and informed about the killing of two. bhumihars and two Harijans and also about the bhumihars rushing towards the Harijan basti. In the mean time, 30-40 persons, including Harihar Rai Rama Rai, Sudarshan Rai, Munni, Jagannath, Suresh, Vindhyachal, Udai, Prem Shanker and Chandra Sheikhar reached there, and Harihar, Rama Rai and Sudarshan Rai set fire to his house and also abused him. His house with all belongings was burnt. The PW 7 Ram Adhar named Bombay Rai, Kashi Rai and Abhai Rai as persons who burnt his house at 7.30 AM. Abhai Rai and Bombay Rai and also beat him by lathis. They were accompanied by Cangeshwar, Kedar Rai, Jagannath, Bhchchu Rai and, Suresh Rai, in all about 25 persons. Out of fear, he ran to a relation's place and returned after three days, whereafter he was medically examined. 43. According to PW 8 at about 7.30 A.M. he was at his home when 15-16 persons, including Sheo Muni, Chhabi Rai, Sivil Rai, Ganesh, Kashi Rai, Gangeshwar, Radha Kishan, Vikrama, Hriday, Chandradeo, Vindhyachal, Babendra, Lallan Bhar, Lalau Rai, Guru Dutt Rai came to his house. Sheo Muni, Chhabi Rai and Sivil Rai set fire to his house and abused him. 44. The PW 9 Mangal stated that at about 7.30 A.M. on the day of occurrence, a mob of about 500 person, raided the Harijan basti. Thirty-thirty five armed miscreants came to his house, Raghunath Rai and Udai Rai set it to fire by lighting a match stick. He also saw Shambhu Rai, Abhai, Harihar, son of Dubri. Chandradeo, Harihar, son of Lodi, Mukteshwar, Satya Prakash, Sugriv, Sheo Govind, Bachchu, Baikunth also amongst them. His house and all the belongings were reduced to ashes. According to PW 10 Smt. Shitli on the day of incident, about two hours after day break she along with children was at home when a large group of persons came there and Radhey Shyam, Barka Tarkeshwar and Chhotka Tarkeshwar set her house to fire. She untied her buffalo from the peg, which ran away, while a goat, and a pig, as well as house-hold effects were all burnt. 45. She untied her buffalo from the peg, which ran away, while a goat, and a pig, as well as house-hold effects were all burnt. 45. The PW 11 Sushila stated that on the day of incident about two Gharis (about one hour) after day- break, a group of miscreants, making noise and burning houses, came near her house. She ran away with a box of tin given by the mother, but accused Tarkeshwar Rai, Chhotka and Kamaksha Rai snatched the said box containing her ornaments. They also set fire to her house which was burnt with all belongings. 46. The PW 12 Gauri also gave the time of incident as 2 Gharis after day-break a id stated that a large number of persons raising slogans of victory came to his basti, and Tarkeshwar Rai and Bombay Rai first burnt the house of Ram Deo and thereafter his house, which both were reduced to ashes. Sonbarsi the wife of Mangru, who was present there, was assaulted by Lallan Bhar, Bombay Rai, Tarkeshwar Rai and Lallan Barai. The PW 13 Deepu stated the dime of this incident to be about 7.30 A.M. when according to him 20-25 miscreants came to his house. Abhai Rai, Kashi Rai and Bombay Rai amongst them set his house to fire, resulting into death of his bullock and burning of all house-hold effects. He also recognised Gangeshwar Rai, Kedar, Bachchu Rai and Jagannath Rai from amongst the miscreants. His son Ram Adhar was also beaten by them. 47. PW 14 Bhagmania stated that the incident took place about 2 Gharis after day-break, Seeing the crowd, she came of the house with her box in a bid to escape. Uma Shanker and Tarkeshwar son of Kamaksha snatched the same containing cash, ornaments and clothes. Her house was also burnt in the fire ignited by the miscreants. 48. According in PW 15 Radhey on the day of occurrence at about 7.15 A.M. the crowd of bhumihars raising slogans reached in front of his house after setting several other houses to fire. Kamaksha Rai, Tarkeshwar son of Rani Uchhah, Bali Ram, Uma son; of Chandrika Rai and Lallan set his house to fire by sprinkling kerosene oil. The houses of several other persons were engulfed in the same fire. '(The miscreants were also beating persons trying to flee away from the basti indiscriminately. Several cattle heads were also burnt. Kamaksha Rai, Tarkeshwar son of Rani Uchhah, Bali Ram, Uma son; of Chandrika Rai and Lallan set his house to fire by sprinkling kerosene oil. The houses of several other persons were engulfed in the same fire. '(The miscreants were also beating persons trying to flee away from the basti indiscriminately. Several cattle heads were also burnt. The PW 16 Sunder stated that the incident occurred about 1 1/2 hours after day-break. Fifteen twenty persons came to his house and Uma, Raghunath, Kamaksha and Rajs Ram burst his house and khalihan. He also recognised Ganesh, Chandradeo. Uma Snarnker, Sita Ram, Sheo Govind, Babu Nandan, Harihar. Guru Duff, Suresh, Jagannath, Lalau, Munni Lal, Jai Prakash, Prem Shanker, Nand Kishore amongst them. Cross examined, he stated chat he woke up as usual before sunrise and had returned after attending the call of nature when he heard the noise and saw smoke from towards west. At that time the sun was rising and was red in colour. 49. PW 17 Chandrika stated that about two hours after day-break, 40-50 bhumihars came towards his house. Bombay Rai, Shriram, Lallan Barai and Lallan Bhar beat his mother Sunri by lathi and she suffered injuries, including fracture in leg. Cross examined, he stated that the incident of arosen had started much before tike assault on his mother. On that day he woke up about half an hour before, sunrise and at that very time he saw the miscreants setting other parts of the basti to fire. He did not go out on account of fear. He came out on hearing the shrieks of his mother and seeing the incident ran away and returned after two days to find his mother in hospital. 50. The PW 18 Panch Ratan stated that about 1½ hours after daybreak, 40-50 persons came to his house. Raghunath and Sudarshan Rai burnt his house by sprinkling Kerosene oil. THE fire also engulfed two neighbouring houses. He also saw Bali Ram, Udai, Kashi, Vindhyachal, Basan Rai, Awadh Rai amongst these miscreants. Cross examined, he stated that he saw several parts of the basti on fire when he woke up on the day of incident. After his house was set to fire, he ran away and returned at about 1 P.M. The PW 19 Ram Briksh stated that Bombay Rai, Lallan Barai and Lallan Bhar beat him by lathi and legs. Cross examined, he stated that he saw several parts of the basti on fire when he woke up on the day of incident. After his house was set to fire, he ran away and returned at about 1 P.M. The PW 19 Ram Briksh stated that Bombay Rai, Lallan Barai and Lallan Bhar beat him by lathi and legs. His house was also set to fire. On the day of incident he woke up little after day-break and saw the basti on fire and noise coming from all sides. After being assaulted, he ran away on account of fear and returned from his relation's place after 8 days. 51. The PW 20 Ram Ugrah stated that after killing Radhey Shyam and Banarasi, their asaillants went to the 'Dera' of Mahendra Rai and from there 400-500 persons led by Mahendra Rai and Ayodhya Rai came to the cham-tol and set to fire a large number of houses. His house and a buffalo were also burnt. Cross examined, he stated, that the cham-tol was set to fire about 1½ hours after the killing of Radhey Shyam and Banarasi. Before that the bhumihars in large number had assembled at the 'dera' of Mahendra Rai. The basti kept burning till the police had arrived at about 8-9 A.M. and started extinguishing the same. 52. The PW 21 Smt. Gujarati stated that her house was set to fire and she was assaulted by Chandrahas, Baij Nath, Mangru and Markandey along with several other persons about 1½ hours after day break. She further stated that the bhumihars had started burning the Harijan basti about 1½ hours before setting her house so fire. The male persons had escaped much before the arrival of the miscreants. From the above narrated evidence of the PWs 1 to 21 there emerges the following position, appellant wise : It would, thus, be found that in respect of each of the 36 appellants, sufficient no. of witnesses have deposed about their having formed an unlawful assembly and in prosecution of the common object thereof, to have participated in the acts of mischief, arson, destruction of property including grains, crops in khalihan and cattle, and also causing hurt to 16 persons of the Harijan basti. of witnesses have deposed about their having formed an unlawful assembly and in prosecution of the common object thereof, to have participated in the acts of mischief, arson, destruction of property including grains, crops in khalihan and cattle, and also causing hurt to 16 persons of the Harijan basti. Those amongst the witnesses examined, whose houses were burnt and the properties destroyed, have also specifically named the individual accused-appellants who either set fire to the houses and other belongings, or voluntarily caused hurt to those injured. Their cross examination has not yielded any material worth the name, to discredit their testimony in this regard, nor can it be said that these witnesses could have no opportunity to see the incident and recognise the persons responsible. The theory of mischief by fire, destruction of property and causing hurt, being self engineered by the victims, has already been rejected by us for reasons recorded above It is also not the case of the defence that miscreants or desperadoes from any other village or locality, were responsible for these acts. Under these circumstances, we find absolutely no reason to disbelieve the prosecution witnesses, most of whom are victim themselves, when they say that the appellants no. 1 to 36, along with several others were the perpetrators of this ghastly crime, of burning and ransacking almost the entire Harijan basti. 53. It has been strenuously argued on behalf of the appellants by their learned counsel that, considering the magnitude of the incident and the fact of the same having occurred before day-break, it could not be possible for the witnesses to have seen the persons actually responsible for these acts of arson etc. This contention however losses sight of the fact that in its very nature, during the incident in question, there could be no dearth of light and opportunity to the witnesses to see the perpetrators of the crime. Had it been an incident of setting fire to an isolated house or two, it could be presumed that the authors of the crime would have done it within twinkling of eyes and escaped unnoticed. Had it been an incident of setting fire to an isolated house or two, it could be presumed that the authors of the crime would have done it within twinkling of eyes and escaped unnoticed. Here, it was a case of a group of about 400-500 persons of the neighbouring hamlet, assembling near the Dera of the village Pradhan, and raising slogans of victory and revenge, proceeding towards the hamlet of Harijans, and for several hours right from a little before dawn up to about two hours after day-break, having indulged in surrounding and setting to fire houses numbering 175-200, one after the other, preventing people from salvaging their belongings, and also causing hurt to as many as 10 persons including, 11 women. The crime having been committed as an act of revenge, and also to teach a lesson to the Harijans for their alleged onslaughts on the bhumihar community since quite sometime past, obviously the accused would have done the same without making any attempt to conceal their identity, and during all this period it was very much probable for such of the inmates of these houses who had remained in the basti, as well as the PWs 1 to 3 and 20 who had taken positions behind shrubs in the vicinity of the Harijan basti, to see the incident and recognise the appellants, amongst them. 54. As far as light is concerned, the burning of such a large number of houses itself would have provided enough light to enable the witnesses, and even others of the locality, to see the faces at least of such of the participants in the crime, as in view of the role played in this incident and the positioning of the individual witnesses, happened to be, or pass, within reasonable distance from the places where these witnesses happened to be. No advantage can be derived by the defence of the fact that all the eye witnesses have not named all the accused-appellants, for the obvious reason that each witness was not similarly placed so as to see exactly the same accused, as could be seen by the others. No advantage can be derived by the defence of the fact that all the eye witnesses have not named all the accused-appellants, for the obvious reason that each witness was not similarly placed so as to see exactly the same accused, as could be seen by the others. The evidence of the eye witnesses led by the prosecution, thus, in our opinion, is fully reliable and acceptable, and we find no reason to differ with the conclusions of the learned Sessions Judge regarding involvement of the appellants, in the incident of arson etc, which followed after the incident leading to the murder of Mangla Rai and Ram Chandra Rai, and the killing of Radhey Shyam and Banarasi. It has already been found above that the incident of murders, which preceded the arson, took place near about 4-5 A.M. on 27-4-1975. The own statement of the DW 4 Ram Prasad is that the incident of fire in the Harijan basti occurred about an hour after the murders. The version of the prosecution witnesses regarding burning of the houses in the Harijan basti having started quite early in the morning of 27-4-1975, thus, finds support besides the circumstances, also by the above facts. 55. Almost all the prosecution witnesses are consistent on the point that the first house in the basti was set to fire quite early, almost immediately after day-break. The sun-rise time on 27th April according to calendar was 5.25 A.M. The day break time thus would be around 5.00 A.M. The total time taken in this incident, considering the large number of houses, khalihans and other properties burnt would not have been less than two hours, (See Cross-examination of PW (3) There is in fact no contradiction in the statements of PW's 1 to 3 and 20 to the effect that the arson started around 6-6.30 AM, and some of the other prosecution witnesses that it occurred around 7-7.30 A.M. None of these witnesses stared the time by watch, rather stated with reference to day-break, sun rise or so. As elicited by the defence itself in the cross examination of these witnesses, particularly PW's 8 and 16 to 21, the fire in other portions of the Harijan basti had started much before the group of miscreants came to the houses of these witnesses and set fire to the same. As elicited by the defence itself in the cross examination of these witnesses, particularly PW's 8 and 16 to 21, the fire in other portions of the Harijan basti had started much before the group of miscreants came to the houses of these witnesses and set fire to the same. The evidence also goes to show that the fire continued to engulf the locality for quite a few hours, and it was only after arrival of the police some time after 8 A.M. that the process of extinguishing the same was started. 56. In view of all the above facts and circumstances, we find it established beyond reasonable doubt that the incident of mischief by fire to houses, khalihans and other properties of the residents of the Harijan basti in question, and injuries to a large number of inhabitants, started some time around 5 A.M. and continued up to 7.30 A.M. on 27-4-1975. On behalf of the appellants the prosecution case, with regard to this part of the incident also has been assailed on the ground of the FIR being a dubious document prepared after deliberations and lodged at a time much later than that shown in police records The contention is that the informant Muneshwar could not have reached police station within an hour of the incident, because the same fear which had gripped others must have gripped him also, and he would not have dared out of his place of hiding. It is however not necessary that all persons, placed in a particular situation will always react similarly. A short while ago his son Radhey Shyam had been killed, and as an aftermath the basti was being burnt and destroyed hence it was quite natural for PW 4 Muneshwar to rush to the police station while the accused were on a burning spree. 57. There is however no reason to suspect that the police and administrative officials gave the FIR, Exhibit Ka 1, its shape. None of the police officials concerned with this case was Harijans. In fact the circumstances when closely examined indicate that the police was closer to the accused party, than the informant and others of his basti. 57. There is however no reason to suspect that the police and administrative officials gave the FIR, Exhibit Ka 1, its shape. None of the police officials concerned with this case was Harijans. In fact the circumstances when closely examined indicate that the police was closer to the accused party, than the informant and others of his basti. It is in the evidence of the defence itself that the men posted at the police outpost in the village, had reached the khalihan of Ram Chandra Rai immediately after these murders, and leaving the dead bodies in their care, Jagdish Rai went to the police station, yet, however, no efforts were made by the said officials to stop the act of arson, or to go to the police station to inform about the same. This also goes to show that by the time Jagdish Rai left for the police station, setting fire to the houses in the Harijan basti' had begun. This circumstance further goes to confirm the truth of the, statement of the informant Muneshwar that he was informed by the Head Constable writer, that he has already got information about the centre incident and has seat force to his village. 58. The learned counsel for the appellants also tried to capitalise the fact of appellant Shambhu Rat being a witness on the inquest report of deceased Ram Chandra Rai, and stated that if he had been named as accused and the FIR already lodged at the police station, he would have been arrested, and not allowed to witness the inquest. There is, however, nothing on record to show that the officer conducting tie inquest of the dead body of Ram Chandra had knowledge of the details of the FIR lodged by Muneshwar. In the position obtaining on the spot, the incidents covering a vast area, and there being large crowds, including police and P.A.C. force, and the victims being grief stricken, there is no wonder if no body noticed as to whether any of the accused persons were present in the khalihan or in the crowd. No adverse inference can thus be drawn against the veracity on the FIR and the time of its being lodged, on this count. No adverse inference can thus be drawn against the veracity on the FIR and the time of its being lodged, on this count. As to whether the FIR was actually registered at the police station at 8.45 A.M. as mentioned in the time column in Exhibit Ka 1 or, at 7.45 A.M. mentioned in the corresponding General Diary entry, and the statement on oath of the Head Constable writer Shiv Dutt (PW 23), the same need not detain us, in view of the fact that the defence has not assailed it on account of mere one hour's delay, rather has suggested that it was lodged several hours later after the inquest of the dead bodies lasting up to 7.15 P.M. on 27-4-1975 was done. The said theory has however been found unacceptable for various reasons already stated above. It is also remarkable in this connection that special report regarding this FIR was sent to authorities promptly on 27-4-1975, and as per the uncontroverted statement on oath of the Head Constable writer (PW 23) the constable sent with the special report had returned back, from the District Headquarters after delivering the same to the concerned authorities, to the police station at 9.30 P.M. which could not have happened if the FIR was prepared late in the evening or still later as contended by the defence. 59. Even if we assume for argument sake that the FIR was not lodged at the time stated, or was lodged a few hours later, it will not have any adverse impact on the prosecution case in the facts and circumstances of this case where there is no evidence at ait to indicate any fabrication. The prosecution story cannot be rejected merely on account of the time of lodging the FIR being somewhat different than shown in police records, in a case where the informant had ample opportunity to see the incident and the participants therein, and has given the precise details thereof, and the said version is fully supported by most natural witnesses. 60. In Marudanal Augusti v. State of Kerala, 1989 SCC (Cri) 985, relied on by the appellants the FIR was held unreliable thereby throwing serious doubts on the prosecution case, on the finding that it was a fabricated document brought into existence long after the occurrence. 60. In Marudanal Augusti v. State of Kerala, 1989 SCC (Cri) 985, relied on by the appellants the FIR was held unreliable thereby throwing serious doubts on the prosecution case, on the finding that it was a fabricated document brought into existence long after the occurrence. There was also omission to mention the names of eye witnesses in the FIR giving minute details, and there was also unexplained delay in despatch of the FIR to Magistrate besides other infirmities. In Bisram v. State, 1986 ACC 227, it was observed that if the FIR cannot be treated to be one got recorded by the informant, though it may purport to do so, no reliance can be placed on it and the prosecution case would stand shattered because of the possibility of the facts stated therein to be tainted and fabricated. 61. In the instant case, as already stated above, the facts as well as the circumstances make it amply clear that the FIR Exhibit Ka 1, was got recorded by informant Muneshwar himself, and that it was so done promptly without any extraneous aid or element of fabrication. 62. In Darshan Singh v. State of Punjab, 1988 CrLJ 909 , relied on by the respondent, the time of incident of murders was stated to be 7.30 P.M., the FIR was shown to be lodged at 8.30 P.M. the police station being at a distance of 12½ kms. The plea of the appellants that the report appears to have been prepared later on and a fake time has been mentioned in it, and the same could not be lodged at 8.30 P.M. was rejected by the Supreme Court on the ground that there was no material to indicate that the time of incident noted is precise time, nor there is evidence as to whether the person who lodged the FIR walked through 12½ Kms. It was further observed that in the absence of any material, the only thing that appears is that immediately after the incident the report is recorded, and it contains a clear description of the incident corroborating the testimony of eye witnesses. The evidence of the prosecution witnesses regarding this part of the incident and participation of the appellants therein, thus finds full corroboration from the FIR Exhibit Ka 1 the veracity of which is not open to doubt. 63. The evidence of the prosecution witnesses regarding this part of the incident and participation of the appellants therein, thus finds full corroboration from the FIR Exhibit Ka 1 the veracity of which is not open to doubt. 63. Yet another contention of the appellants, that the prosecution case with regard to this part of the incident, is liable to fail, in view of failure of the prosecution to prove the first part relating to alleged murders of Radhey Shyam and Banarasi, also does not appear tenable in the facts and circumstances of this case. 64. The law is not that, in each case where the genesis of the incident, or any part of the prosecution story, is not proved, or not found to be correct, the entire case, including even such part which is distinct and separable, and is established from evidence, will also be liable to fail. The only requirement is that the evidence should be scrutinized with caution and only such of the facts should be held established, as are supported by evidence of a reliable nature In the instant case as the discussions above would show, irrespective of the fact, that the theory of murder of deceased Radhey Shyam and Banarasi, as set up by the prosecution has not been proved, there is clinching and reliable evidence, supported by circumstances, regarding committing acts of arson, mischief and voluntarily causing hurt, by all the accused-appellants along with a large number of others of their caste, having formed an unlawful assembly for the purpose. This part of the story, and the charges based thereon thus, in our opinion, are established beyond any reasonable doubt. 65. On behalf of the appellants exception has been taken to the conviction recorded against them, also on the ground of 29 other accused persons sent up for trial, having been acquitted despite the same witnesses deposing about their participation in the second phase of the incident. It would however, be found from a perusal of the judgment of the trial court that these accused persons were acquitted by way of abundant caution for the reason that they were not named in the FIR. It would however, be found from a perusal of the judgment of the trial court that these accused persons were acquitted by way of abundant caution for the reason that they were not named in the FIR. This complicity having come to light in the statements under section 161 CrPC of the persons, who had witnessed only the second part of the incident, although there could be no bar in law to their conviction on the merit of the statements of PWs 4 to 19 and 21 made before the trial court, but in acquitting them the learned trial court cannot be said to have gone wrong to such an extent that the conviction of even those who were named in the FIR and whose participation in the acts of arson and causing hurt etc. or being members of the unlawful assembly formed for the purposes, is fully established by the evidence of the eye witnesses whose presence and opportunity to see the incident cannot be denied, may become unsustainable. 66. The plea that such of the accused persons against whom there is no allegation of actually setting fire damaging property or causing hurt, cannot be held guilty of the offences charged is also equally untenable. To attract the liability for constructive criminality under section 149 IPC what is required is that the accused parsons were member of an unlawful assembly, the common object of which was to commit an offence, and such offence was committed in prosecution of the common object. It is not necessary that each accused must necessarily commit overt act towards the commission of the offence. In the instant case the common object of the assembly of which all the appellants were members was to set fire to the Harijan Basti, and in prosecution of such object many members thereof did commit acts of arson, destruction of property and voluntarily causing hurt. There being no reasonable scope for the conclusion that any of these appellants were not members of the unlawful assembly in question, or their names were included due to any confusion, or they were mere on lookers, they have rightly been held guilty of the offences under sections 147, 323, 429, 436 read with section 149 IPC. 67. There being no reasonable scope for the conclusion that any of these appellants were not members of the unlawful assembly in question, or their names were included due to any confusion, or they were mere on lookers, they have rightly been held guilty of the offences under sections 147, 323, 429, 436 read with section 149 IPC. 67. In taking our this view we are fortified by the principles laid down by the Supreme Court in Muneshwar Rai v. State of Bihar, AIR 1992 SC 483 . 68. As to the plea of alibi of appellant Abhai Narain Rai it would be found that the evidence of bath DW 1 Ganesh Prasad and DW 2 Bindheshwari Prasad, is of formal character in so far as they stated about Abhai Narain reporting at Junior High School Mohammadabad Gohna, District Azamgarh on 26-4-1975 morning, on being deputed to prepare arrear pay bills. None of them, however, have stated from personal knowledge about the presence, of appellant Abhai Rai in Mohammadabad Gohna, District Azamgarh, or his absence from village Sherpur Kalan District Ghazipur, in the night of 26/27-4-1975 or morning of 27-4-1975. Under these circumstances, we find that the learned Sessions Judge was fully justified in rejecting the plea of alibi of appellant Abhai Rai, and accepting the evidence of the PWs 1 to 3, 5 and 7, about his involvement in the incident in question. To conclude, the result of all the above discussed facts, evidence and the circumstances is that, the prosecution having failed to prove beyond reasonable doubts that murder of deceased Radhey Shyam and Banarsi was committed on 27-4-1975 at about 6 A.M. by appellants no, 1 to 5, Shambhu Rai, Kamaksha Rai, Munni Lal Rai, Chandradeo Rai and Udai Rai along with 20 others, their conviction recorded by the learned Sessions Judge for the offences under sections 364 and 302,, both read with section 149 of the IPC and the sentence respectively of 10 years' R.I. and imprisonment for life, awarded thereunder, deserve to be set aside. 69. The prosecution, however, has succeeded in establishing beyond reasonable doubts that all the appellants (nos. 69. The prosecution, however, has succeeded in establishing beyond reasonable doubts that all the appellants (nos. 1 to 36) along with a large number of others, on 27-4-1975 at about 5 A.M. in the morning, had formed an unlawful assembly, the common object of which was to commit mischief, and in prosecution of such common object of the said assembly, various members thereof committed mischief by setting fire to a large number of houses, burnt to death 18 cattle heads, caused large scale destruction of property, and also voluntarily caused hurt to 14 persons and grievous hurt to two, in all 16 inmates of Harijan basti. All these 26 appellants, thus, are proved to be guilty of offences punishable under sections 147, 323, 325, 429, 436, read with section 149 of the IPC and were rightly convicted of the said offences by the learned Sessions Judge. 70. Now coming to the paint of sentence, it has been contended on behalf of the appellants by the their learned counsel that the incident having taken place about 18 years ago, after a lapse of such a long period, it will not be feasible, or expedient or interest of justice, to award substantive sentences of imprisonment and the appellants should be let off by imposing adequate fine. True it is, that 18 long years have been taken in handing down the verdicts of the trial court and this Court, presenting a typical and glaring example of inordinate delay inherent in our present day judicial system, but on that account alone, a crime committed in a calculated manner and duly proved cannot be left unpunished or a punishment which may be a mere eyewash being awarded Considering; the totality of circumstances as well as keeping in mind the delay factor, we, however, feel that the sentence awarded should be suitably reduced for the offences under section 429/149 IPC to 3 years and 436/149 IPC to 5 years, while maintaining the sentences awarded under the other sections. Reference in this connection may be made to Mukteshwar Rai v. State of Bihar (supra), where in somewhat similar circumstances the Supreme Court reduced the sentence awarded under section 436, read with section 149 IPC from 10 years to 5 years. Accordingly, appeal is allowed in part. The conviction of appellants no. Reference in this connection may be made to Mukteshwar Rai v. State of Bihar (supra), where in somewhat similar circumstances the Supreme Court reduced the sentence awarded under section 436, read with section 149 IPC from 10 years to 5 years. Accordingly, appeal is allowed in part. The conviction of appellants no. 1 to 5 Shambhu Rai, Kamaksha Rai, Munni Lal Rai, Chandradeo Rai and Udai Rai, under sections 364/149 and 302/149 and sentences of 10 years' R.T. and imprisonment for life, respectively, awarded thereunder are hereby set aside. The conviction of all the appellants (nos. 1 to 36) for the offences under sections 147, 323, 325, 429 and 436, all read with 149 IPC as well as the sentences awarded by the trial court under sections 147, 323/149 and 325/149 IPC are maintained. The sentence awarded under section 429/149 IPC is reduced to 3 years' R.I. and that under section 436/149 IPC to R I. for 5 years. 71. All the above sentences of the appellants shall run concurrently. The appellants are on bail. They shall surrender to custody forthwith to serve out those sentences and their bail bonds shall be cancelled.